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11. Should the court allow the plaintiff to ask the defendant about the destruction of the report?
A plaintiff sued an individual defendant for injuries suffered in a collision between the plaintiff's car and the defendant's truck while the defendant's employee was driving the truck. The plaintiff sought discovery of any accident report the employee might have made to the defendant, but the defendant responded that no such report existed. Before trial, the defendant moved to preclude the plaintiff from asking the defendant in the presence of the jury whether he had destroyed such a report, because the defendant would then invoke his privilege against self-incrimination.
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If a party destroys evidence, it is proper for the jury to draw an inference that the evidence was adverse to that party's case. See Fed. R. Civ. Pro. 37 advisory committee note (2015) («Adverse-inference instructions were developed on the premise that a party's intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence.»)
Work-product immunity does not protect documents where there has been a showing of substantial need for them and there is no substantial equivalent available. Fed. R. Civ. Pro. 26. Moreover, a claim of work-product immunity must be asserted in front of and ruled on by the court. A party cannot simply destroy the material and claim work-product protection.
D is correct. In civil cases, it is proper to draw an adverse inference from an assertion of the privilege against self-incrimination. Furthermore, a party's destruction of evidence would be proper grounds for a jury to presume that the destroyed evidence was adverse to that party's case. Here, the court should allow the question to be asked because it is proper regardless of how the defendant responds.
A is incorrect. It is true that a report prepared in anticipation of litigation may qualify as work product. However, work-product immunity is not absolute. Documents that fall under work product are still subject to discovery upon a showing of substantial need and the inability to obtain the substantial equivalent of the materials by other means. To assert a work-product immunity claim, the party must do so in front of the court. It may not destroy the material first and then later claim it was protected by work-product immunity. Finally, here the plaintiff would not be asking the defendant to produce the report for the jury to see, but rather, only asking whether such a report had been destroyed.
B is incorrect. There is no rule against an adverse inference when a party in a civil case asserts his privilege against self-incrimination, as explained above.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. There is no rule preventing a party in a civil action from invoking his privilege against self-incrimination. However, there is also no rule against commenting on or drawing an inference from a party in a civil suit's invocation of this privilege. As such, the plaintiff should be permitted to ask the question regardless of how the defendant responds.